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Notably, felon-disenfranchisement laws do not affect racial groups equally. A 2022 report from the Sentencing Project shows that “one in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans,” with more than 1 in 10 being disenfranchised in seven, mostly Southern states. So when prosecutions under these laws chill votes, it is Black votes that they are disproportionately chilling. Indeed, approximately two-thirds of those rounded up in the first wave of Governor DeSantis’s election unit’s arrests were Black.
Sentencing can add another layer to the racial aspect, which should be no surprise, given the disproportionately harsher sentences that Black defendants generally endure. Facing similar charges, Ms. Mason and well-heeled white offenders received strikingly divergent sentences — a five-year prison sentence for her, a slap on the wrist for them. In Ms. Mason’s home county, for example, a justice of the peace who falsified names to get on a primary ballot was sentenced to probation. In Georgia, a state Republican official just last week received a $5,000 fine for illegally voting nine times.
The problem with prosecuting marginal voter fraud cases goes beyond its chilling effect. If the goal is truly to ensure that only eligible voters vote, it is actually an ineffective tool in a state’s arsenal. Texas, for instance, has numerous safeguards in place that are designed to permit only lawful votes to be counted. In the context of felons improperly voting, these safeguards exist at the local, state and federal levels. Indeed, in Ms. Mason’s case, such safeguards worked: The provisional vote that almost cost her five years of her life was never counted.
It is unjust that some people might not vote because reckless prosecutions like Ms. Mason’s intimidate them. As Ms. Mason’s own case demonstrates, courts cannot stop these injustices from happening; only ethical prosecutors with a firm commitment to safeguarding constitutional rights can do that.
Gregory Nolan is a senior counsel at Brown White & Osborn and a former federal prosecutor and counsel at States United Democracy Center.
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